Afghanistan: A Profile of the Government and Judiciary
Afghanistan’s history has been volatile, seeing many changes in leadership, internal wars, and invasions. The political instability has taken its toll on the country. Life is unpredictable and legitimate government authority, sometimes in the form of autonomous regional leadership, has come and gone. There has been a desperate need for clear laws to be universally applied and an environment of political stability to take hold in order for people to meet the basics of social life by meeting economic needs, to strive for basic healthcare, and to live free from violence.
This article will briefly review the function and foundation of the latest government in Afghanistan, so that the reader can understand the structural form of the new system that has emerged as the proposed solution to the country’s many political and economic problems.
After the defeat of the Taliban in Afghanistan, other major faction leaders met in Bonn, Germany where they outlined the process by which they would move to a representative democracy. This Bonn Agreement led first to an Afghan Interim Government, followed in 2002 by an Emergency Loya Jirga in which Hamid Karzai was selected as the interim leader of country. Loya Jirga’s are a traditional form of assembly in Afghanistan in which leaders and elders gather to decide on political matters such as selecting new national leaders.
A second assembly, the Constitutional Loya Jirga, ran from December 2003 to 4 January 2004 and succeeded in forging a new national constitution. With a constitution in place, the way was open to elections, and in 2004 Hamid Karzai was popularly elected as President. With 55% of the votes, the new President was sworn in on 4 December 2004.
Elections for other positions in government did not take place at the same time due in great part to security concerns. In September 2005, legislative, and provincial elections finally took place. District elections, to select representatives to a sub-provincial level, however, have yet to be initiated.
Afghanistan’s state structure has several main organs: the executive, the legislative, the provincial, districts, municipal, and the judiciary. The country is formally centralized under a unitary structure in which the central government in Kabul is responsible for the primary functions of running the country. All sub-national elected bodies and administrations are meant to directly or indirectly follow the lead of the President, the Ministers, and the National Assembly.
The Afghan Executive consists mainly of the President, two Vice Presidents, 25 Ministers, and the Attorney General. The President is the head of government and army, selects Ministers, the head of the national bank, the Attorney General, and also appoints the Supreme Court Judges, the Governor of each province, Mayors, and other posts that require National Assembly assent.
The President of Afghanistan is popularly elected for a 5 year term and can hold office for a maximum of 2 terms. The two Vice Presidents have to be selected and named when the President registers for the election. The Presidential candidates require an absolute majority to win, and a run-off election is held with the top two candidates if one of them does not receive over half of the votes.
The National Assembly, also called the Parliament, is bicameral, with an upper and lower house. The lower house is known as the Wolesi Jirga (Assembly of the People), while the upper house is called the Meshrano Jirga (Assembly of Elders).
The Afghanistan Research and Evaluation Unit (AREU) outlines the National Assembly’s constitutional powers as such (1):
• Ratification, modification, or abrogation of laws and legislative decrees
• Approval of plans for economic, social, cultural, and technological development
• Approval of state budget, permission for obtaining and granting loans
• Creation, modification, and abrogation of administrative units
• Ratification of international treaties and agreements, or abrogation of the membership of Afghanistan to them
• Other authorities specified in the Constitution
Both houses can initiate legislature, as can the President, and the Ministers. Legislation becomes law once it is supported by both houses of the National Assembly as well as the President. If a bill passes through the National Assembly but is opposed by the President, the President can, within 15 days, send it back to the Wolesi Jirga as long as reasons are given for its rejection. The Wolesi Jirga, after review, can still enforce the new legislation by passing it with a 2/3 majority vote. A bill or decree must be passed by the National Assembly no later than a month after submission.
The Wolesi Jirga can have a maximum of 250 seats, with each representative elected to a 5 year term. Seats are distributed by province based on their populations. In addition, 10 seats are reserved for nomads. Of the provincial seats, a total of 68 are reserved for women (an average of 2 per province), and 3 of the nomad’s seats must also go to women. Candidates must be at least 25 years of age.
The Mishrano Jirga has 102 seats of which 2/3 are elected. The remainder of seats are by appointment. Constitutionally, each Provincial Council elects one representative for a 4 year term, while each District Council does the same for a 3 year term. Currently, with no District Councils in place, the Provincial Councils also elect an additional member in the place of a District. The President appoints the remaining 1/3, of which two must represent nomads, and two must represent the disabled. Half of the Presidential appointments must be women. Candidates must be at least 35 years of age.
The Provincial Council Law of 2007 is unclear about the authority of these Councils. This has left room for debate. Mainly, the Councils have to elect members to the Mishrano Jirga; “advise and cooperate with the provincial administration on a variety of issues, including development planning;” and “participate in the development of the provinces and the improvement of administrative affairs.” (2)
The 34 Provincial Councils have 9 to 29 seats, calculated by population. Candidates run in a single provincial constituency, must be residents of the province, and cannot simultaneously run for both the Wolesi Jirga and the Mishrano Jirga. Constitutionally, a quarter of seats are reserved for women.
Elections for District Councils have not yet been held due to security and administrative barriers. Also, the Wolesi Jirga has yet to finalize the district boundaries, and significant debate remains on this issue.
District Councils are meant to have 5 to 15 seats, calculated by population.
Municipal and Village Councils
Elections for these Councils are on hold for the near future. Uncertainty regarding the authority and other details of the Councils remains and will likely not be resolved in the next few years.
Village Councils are to be elected to 3 year terms though no term limits have been finalized for Municipal Councils and Mayors.
The Electoral System
All Afghan nationals who are at least 18 years-old are eligible to participate in elections. Each elector votes for a single individual in his or her constituency (this system is called the Single Non-Transferable Vote).
Given the skepticism attached to political parties in Afghanistan’s culture as well as the novelty of this electoral system for the country, a system in which voters are asked to pick an individual to represent them further enforces the trend away from political parties.
The Judiciary is composed of the Supreme Court, the Appeal Courts, and the Primary Courts. The Attorney General falls under the Executive and is responsible for investigations and prosecutions.
Due to the frequent change in governments and the power of autonomous, sometimes effectively independent factions over the past 30 years, there still exist a significant number of contradictory laws that remain to be harmonized. Furthermore, traditional means of justice still maintain a great deal of their influence, and the civic and traditional mechanisms of justice constitute as yet conflicting and coexisting systems. Jirgas and shuras have often been a means of settling disputes, both civic and criminal. For this reason the civil law empowered under the constitution currently lives alongside traditional laws as well as Islamic sharia laws. These systems are often at odds on matters of criminal law and their means of enforcement. Efforts are being made to actualize the primacy and even monopoly of civil law.
The Supreme Court is the most senior of the Judiciary’s three branches, and has the broadest set of powers, touching on most anything that can be interpreted under the constitution. Its decisions, concluded by majority vote, are the final say on legal matters. The Supreme Court oversees all policy decisions by other courts, and manages all courts’ budgets and staff.
The Supreme Court has 9 members, appointed for 10 year terms, 6 of which are required to meet quorum. Appointments are made by the President and must meet the Wolesi Jirga’s consent. Of the 9, the President selects one as the Chief Justice.
Primary Courts are divided into 5 jurisdictions: the central provincial courts, juvenile courts, commercial courts, family issues courts, and district courts. All civil and criminal trials are first brought before a Primary Court. In case of dispute, the case can go before an Appeal Court, which may also decide to pass on the case to the Supreme Court. Critics argue that the large number of appeals currently in process undermine the smooth functioning of the courts and unduly slow down the process.
The Appeal Courts review disputed rulings of the Primary Courts and have the authority to “correct, overturn, amend, confirm or repeal these rulings and decisions.” (3)
Also see a profile of Afghanistan’s Army and Police on this site.
The vast majority of the information in this report comes from The Afghanistan Research and Evaluation Unit’s “The A to Z Guide”. To learn greater detail on Afghanistan’s state structure, the international agreements that affect it, and the international organizations that are shaping it, refer to the The A to Z Guide.
(1) Afghanistan Research and Evaluation Unit (AREU), 2008. ‘The A to Z Guide to Afghanistan Assistance,’ sixth edition, http://www.areu.org.af/index.php?option=com_docman&Itemid=26&task=doc_download&gid=566.